Saturday, August 28, 2010

Labor Day is fast approaching, bringing the unofficial end of a long hot summer and the official start of a short hot fall political election season. As a political blogger, the sun never sets on the election season. Time to take another stroll down the Dividist beach to see if that beautiful object of our affection, Divided Government, is drawing any closer.

In January, the expectation was that the GOP would make gains in both houses of Congress, but fall short of retaking a majority in either. It just looked like the GOP was buried too deep in the sand to dig themselves out in one cycle. The Scott Brown "Massachusetts Miracle" eclipsed that particular ray of conventional wisdom, and since then CW has cautiously has settled on a partly cloudy forecast with a chance of heavy Republican rain. The current political weather report gives the GOP a good chance to retake the majority in the House of Representatives, but the Senate is still considered by most to be out of reach. Conventional wisdom is not unanimity, so you can find some grasping at straws, others fearing the worst, and a few wondering how bad it could get. To the center right, it looks like a done deal. We'll start our analysis by narrowing down the range of possibilities.

Every Possible ScenarioThe entire universe of possibilities can be distilled to these four outcomes - listed in order of Current Conventional Wisdom:

Democrats retain Senate, Republicans win House

Democrats narrowly retain House and Senate

Republicans win House and Senate

Republicans win Senate, Democrats retain House

The best way to evaluate this would be a bottoms-up analysis looking at detailed polls and statistically correlating demographics and voting history on a district by district, state by state, and election by election basis. I'm not going to do any of that. For one thing, it is beyond my ken, for another, I can get all that from the usualsuspects doing the polling and Nate Silver's blog doing the quant work. Instead, I’m going to look at the election through the prism of two "rules of thumb" and look for similarities and differences to historically analogous elections. And steal from Nate.

Maxims and ThumbsThe first rule of thumb does not get much publicity, but is an interesting fact that I've dubbed "The 100 Year Rule". In the almost 100 years since we have been been electing Senators directly (only since the 17th Amendment was ratified in 1913) the House of Representatives has never flipped majorities unless the Senate flipped first or at the same time. If conventional wisdom is correct and the Republicans take the House but not the Senate, it would be an historic first. So my first prediction is to go out on a limb and say this is not going to happen. Conventional wisdom is wrong and this scenario is the least likely of the four.

The second rule of thumb is Tip O'Neil's maxim "All politics is local." To the degree that O'Neills maxim is true, it is true about the House. This is just another way of saying (as is the first rule) that it extremely difficult to flip majorities in the House of Representatives. House incumbents, (frequently aided by gerrymandered districts) enjoy extraordinarily high re-election rates. Even when voters tell pollsters they despise Congress in general, they'll say they love their specific representative who is often the conduit by which federal services are delivered or expedited to individuals, municipalities, and businesses in the district. House elections are almost always "local." Almost.

Looking Back1994 and 2006 were two midterm election cycles where elections were decidedly not local. They turned on national issues and the House of Representatives flipped majorities simultaneously with a flip in the Senate. These two mid-term elections shared several characteristics: We were under One Party Rule (Democrats in '94 - Republicans in '06); There was widespread dissatisfaction with the party in power; The opposition party was energized; The base of the incumbent party was disillusioned with a palpable lack of enthusiasm; There was a widespread perception that the party in power was arrogantly pursuing policies opposed by a majority of Americans; Major corruption scandals were in the headlines for the party in power throughout the election year (Rostenkowski in '94, Abramoff and Foley in '06).

Now, without a doubt, all of these elements are present in 2010. However, I don't believe the 2010 corruption stars (Maxine Waters and Charlie Rangel) rise to the level of the corruption superstars we had in '94 and '06. In both of those elections, the corruption scandals were the last straw and triggered the "throw the bums out" gag reflex in the voters. Unless there is an October surprise and more corrupt Democratic pols make into the headlines, I just don't believe there is enough animus to overcome the huge House of Representatives incumbent advantage to get the massive 40 seat shift. Plus, one should not underestimate Nancy Pelosi. My conclusion on the House: Close, but no cigar. 2010 will not be quite like 1994 or even like 2006.

Miracles HappenSo if we are to see divided government restored in 2010, the best chance will be the Senate. In January this looked like an impossible hill to climb. The Democrats held a 60-40 super majority and the tie-breaker in the person of Joe Biden. To gain the majority the Republicans would have to win 11 seats. Nobody in either party considered that realistic. But - then something remarkable happened. Republican Scott Brown won Ted Kennedy's Senate seat. You might not think that one seat would change the complexion dramatically, but it does.

Thanks NateTime to rip Nate Silver's work. His chart on the left is remarkable. It shows Nate's stack ranking of the Senate seats most likely to change parties. Of the top 12 seats most likely to switch parties, 11 of them are currently held by Democrats. All either have the Republicans leading in the polls or are within the margin of error. The one seat of the top 12 currently held by a Republican is the Florida Senate, and it is only there because Independent Crist is in a dead heat with Republican Rubio. The Democrat has no chance in Florida. And if Crist were to win, he would likely caucus Republican for reasons that I'll outline shortly. Now - this still appears to be a very tough climb as the Republicans need 10 of the 11 Dem seats in play to secure an outright majority. But wait! - there is another scenario - they may need to win only 8 or 9 of the 11 seats to take control of the Senate. How? the answer can be discerned by looking to the 2012 election.

2012 effect on 2010This year the structural playing field is even. There are 37 Senate seats yet to be decided, with 19 currently held by Democrats and 18 held be Republicans. In 2012 the Republicans will have a huge structural advantage in the Senate elections. Of the 33 seats contested, 23 are held by Democrats and 10 by Republicans. The Democrats will be on defense with many more seats to defend, the Republicans will have a target rich environment. If they don't already have the majority, it it is a lock the GOP will take the majority in 2012.

Why is this important in 2010? Because Senators Ben Nelson and Joe Lieberman can count. If the GOP gets within 1 or 2 seats of an outright majority, Nelson and Lieberman will be in play. They'll have one shot to cut a deal to guarantee their committee chairmanships for at least another 4-6 years (if re-elected), whereas they will be out as Committee chairs after two years if they continue to caucus Democratic. This also applies to Crist should he knock off Rubio in Florida. My take - these guys like the power and perks that come with committee chairmanships and will not be inclined to give them up too quickly. It just would not be as much fun for them, being in the Senate without that chair. And lets be honest - its not like you liberals have been particularly nice to either of them over the last couple of years.The Dividist PrognosticatesThe Dividist 2010 election prediction: The GOP wins 8 or 9 more Senate seats outright, then takes majority control by flipping Lieberman and/or Nelson. They fall a few seats short in the House and Nancy Pelosi continues as Speaker of the House.

Stack ranking of all possible election scenarios in order of likelihood:

We'll be tracking this dirty dozen of Senate races in posts between now and the election to monitor our last best chance of restoring a perfect "10" in '10 and once again gaze upon a beautiful, desirable, smoking hot divided government in 2011.

Ok - I actually listed a baker's dozen. Rand Paul's race in Kentucky is included in the watch list, as his lead is barely out of the margin of error. It'll be an interesting race to watch. Like Sharon Angle in Nevada, Rand Paul was a tea party favorite that knocked off the GOP establishment candidate. In both cases, media gaffes prompted unfavorable polls and a lot of chortling from the left. The left-o-sphere was confident that the Tea Party had torpedoed GOP chances in Kentucky and Nevada. I checked in with Moonage, a Kentucky blogger who always has his finger on the pulse of local politics. He is calling Kentucky for Rand Paul. Take it FWIW, but I think Moon's got it right.

Nevada? Another matter. Frankly I am astonished that this race remains a virtual dead heat, and it is prompting signs of panic on the left. The Nevada race may be the single clearest indicator that this may be a bigger GOP tsunami than Conventional Wisdom has yet to acknowledge.

Wednesday, August 18, 2010

I was recently contacted by the blogging authorities, demanding to know why I have yet to post about the Mosque/Cultural Center to be built/not built in a location somewhere near/not near ground zero in New York. I have no excuse. I cannot plead ignorance, as I have been cognizant for some time that this was a Mandatory Blogging Topic - yet I failed to act.

I have avoided my blogging obligations because, on this issue, I feel a lot like this guy - or this guy - or perhaps like William Shakespeare "It is a tale told by an idiot, full of sound and fury, signifying nothing." I see this as little more than a excuse by partisans and bloggers on both the right and left to flog their favorite bogeymen in the hope of securing a minor political advantage. The significance of this story is not worth the ink and electrons spilled on it.

In America, in matters of religious tolerance there are no close calls, there is no qualification of first principles, and the first amendment is not location dependent. I hold no quarter with the distinction of "rights" vs. right which seems to be the Clintonian parsing of choice among those looking to rationalize making the Cordoba Project move the mosque.

I''m going to make this easy on myself and crib extensively from a previous post invoking the views of a founding father whose quote is the source of the name of this blog and speaks directly to this issue.

Thomas Jefferson writing in the third person, in a letter to Dr. Jacob De La Motta on the occasion of the 1820 dedication of a synagogue in Savannah, Georgia:

."Th. Jefferson returns his thanks to Dr. De La Motta for the eloquent discourse on the Consecration of the Synagogue of Savannah, which he has been so kind as to send him. It excites in him the gratifying reflection that his country has been the first to prove to the world two truths, the most salutary to human society, that man can govern himself, and that religious freedom is the most effectual anodyne against religious dissension: the maxim of civil government being reversed in that of religion, where its true form is "divided we stand, united, we fall." He is happy in the restoration of the Jews, particularly, to their social rights, and hopes they will be seen taking their seats on the benches of science as preparatory to their doing the same at the board of government. He salutes Dr. De La Motta with sentiments of great respect."

His short letter speaks to both the intent and core convictions of a key founder and architect of our country and constitution. Consider the pride and importance that Jefferson invests in the principle of religious freedom and diversity in this letter. He finds it "gratifying" that our country was the "first to prove to the world" the "two truths" that are the most beneficial to human society - "that man can govern himself", and absolute "religious freedom" is the only answer to "religious dissension".

Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word 'Jesus Christ,' so that it should read 'a departure from the plan of Jesus Christ, the holy author of our religion.' The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination."

Finally in a letter to Moredcai Manuel Noah, Jefferson reminds us that protection of religious freedom under the law, while necessary, is not sufficient to ensure tolerance and the fair and equitable treatment of all religious belief.

"Our laws have applied the only antidote to this vice, protecting our religious, as they do our civil rights, by putting all on an equal footing. But more remains to be done, for although we are free by the law, we are not so in practice. Public opinion erects itself into an inquisition, and exercises its office with as much fanaticism as fans the flames of an Auto-da-fé. The prejudice still scowling on your section of our religion altho' the elder one, cannot be unfelt by ourselves. It is to be hoped that individual dispositions will at length mould themselves to the model of the law, and consider the moral basis, on which all our religions rest..."

The work of religious tolerance was incomplete in the time of Jefferson, and remains incomplete today. Religious intolerance is an issue that every generation of Americans must face anew for themselves. As Americans of good will fought for the principle of religious freedom at the beginning of the American experiment, it falls to Americans of good will in each generation, of every religion, race and creed, to ensure that in their own time their generation remembers and understands that - as regards religion - “divided we stand.”

To wrap this up I will invoke a poet/philosopher of our own time - Mojo Nixon. While these lyrics were written in response to another civil libertarian challenge, I don't think Mojo would mind my applying them here...

"You know - Thomas Jefferson Is gonna be mighty pissed When he finds out about this, I say - Come back from the dead Tom, Sock ‘em in the head."

Monday, August 16, 2010

Welcome to the 39th edition of the Carnival of Divided Government - The Special Summer of Our Discontent Edition.

Pass the Prozac

With the primaries wrapping up and Labor Day fast approaching, the mid-term election lollapalooza is about to kick into high gear, but few seem happy about it. This year's extravaganza features a Democratic administration kicking it's base, liberals bitterly complaining about the Democratic Party, Tea Party Conservatives attacking establishment Republicans, and Ivory Tower conservatives decrying the hoi-polloi that energize the Republican base. Independents and libertarians have decided the only thing worse than voting for the GOP, is leaving the Democrats with all the keys to the castle. Surely....

Now is the summer of our discontent Made inglorious winter by this "post-partisan" pretender And all the clouds that sullied our representative house In the deep bosom of the speaker lay buried. - not William Shakespeare

Carnival of Divided Government

As explained in earlier editions, we have adopted Latin ordinal numeration to impart a patina of gravitas reflecting the historical importance of the series. In this theCarnival of Divided Government Triginta Duodêvîgintî (XXXIX), as in all of the CODGOV editions, we select volunteers and draftees from the blogosphere and main stream media writing on the single topic of government divided between the major parties (leaving it to the reader to sort out volunteers from draftees). Consistent with this topic, the primary criteria for acceptance in the carnival is to explicitly use the words and/or concept of "divided government" in submitted posts. A criteria that, to our endless befuddlement, is ignored by many of the bloggers submitting posts, which sadly results in The Dividist reluctantly ignoring their fine submissions.

"Democrats see the House slipping away, their Senate majority threatened and a president now too divisive to profitably appear in many districts. So how have national Democrats decided to respond? With a series of tactics that make their worst problems worse.

First is the depiction of Republicans as the "party of no," populated by obstructionists blocking needed measures to create jobs and improve the economy. Vice President Biden recently applied this critique to the stimulus package. "There's a lot of people [who] at the time argued it was too small," he said. If it had not been for Republican opposition, "I think it would have been bigger." No doubt it would have been.

This is Biden's response to American economic anxiety: If Democrats had even greater control in Washington -- even larger influence than holding the presidency and both houses of Congress -- they would have spent more than $862 billion on the stimulus. Rather than allaying the fiscal concerns of independents, Biden is actively feeding these fears -- thereby making the case for the moderating effects of divided government."

David Harsanyi of Reason Magazine agrees, finding the Democratic Party tactic of painting Republican candidates as crazy extremists to be a bit absurd considering their record of the last two year. He asks the question "Who's the Radical":

"First, the GOP should concede that it does have a few quirky candidates running around the country who lack the political sophistication of, say, an Alan Grayson or a Maxine Waters. Are these Republican oddballs a bit batty? For sure. But unlike, say, the "stimulus" legislation, a plan to uncover the Hawaiian bunker with the president's Indonesian passport probably won't cost taxpayers $1 trillion and millions of jobs. What's worse, after all, suffocating the economy or being a bit cautious? Also, please keep this in mind: Nationalizing health care is not radical. Tripling the budget deficit in two years isn't, either. Republicans also can—if they stick to free-market rhetoric and stay away from any insinuation of armed insurrection—continue to be seen as the more moderate party. "

David correctly identities the operative question - "What's Worse?" - Electing a few incompetent and potentially batty Republican legislators to the mix? - Or - Permit One Party Rule by the Democrats to continue batshit insane out-of-control levels of government spending and debt? Clearly, the moderating influence of divided government is the more rational choice.

"For establishment Republicans, the name of the game is not leading the country. It’s gaining and holding onto power. That, of course, is why so many of us see so little difference between the parties – the Democrats have the exact same goal. The time is almost certainly coming when that game makes our economic and political system so unstable that establishment politicians get their playing field yanked out from under them...

Until then, enjoy the football game this November, and cheer for your team as you watch the election returns, but understand that we won’t get any difference that really matters. Yes, Obama’s hard left ideology will be blunted, and I also prefer divided government to what we have now. But the big goal is reversal, and we’re just not yet in bad enough shape for that to happen. A GOP victory this fall just means a small delaying action against the coming reckoning."

Billy is a bit too pessimistic - even for me. Sure, we don't know if our injured patient is going to survive. But the wounds will not have a chance to heal unless we first slow or stop the bleeding. Divided Government is a tourniquet. Let's apply the tourniquet in 2010, then we can focus on curing the patient.

"I’m under no illusions that the Democrats are firm believers in my understanding of limited government. But if you want me to think of the GOP as anything other than a foil in a blessedly divided government, then the GOP will have to explain exactly how it intends to limit government. Otherwise, I’ll just continue to look at the years 2000-2008 (not to mention 1981-1992, and definitely not to mention Wage and Price Controls Nixon) and at the refusal to touch Medicare, and at the insistence on increasing the size of the defense budget and at the insistence that the federal government has the right to arbitrarily violate property rights of politically unpopular groups and at the insistence that we should, like, totally start a new war against Iran, and at the refusal to find ways to pay for any of this whatsoever and think: they have not learned, they really have not learned."

I agree with everything that Mark says about the GOP, but the simple fact remains - voting for a "foil in a blessedly divided government" is a good enough reason to vote Republican in 2010.

"The Democrats’ message of “We May Be Incompetent, But They’re Crazy” may work in provable cases (and perhaps depress indie/moderate turnout) but not in general. Some voters seeking a divided government won’t care if the GOP candidate is “crazy,” “extreme,” etc. Others want to believe things can get better, and will convince themselves the GOP is a suitable alternative. "

How absurd is the Democratic claim the Republicans are " unfit to lead" by pointing to fiscal irresponsibility with unfunded profligate spending and fighting two wars resulting in doubling the budget deficit over eight years, wehn they then ask voters to ignore their one party rule with even greater unfunded profligate spending and expanded war efforts tripling the budget deficit in two years. This is delusional thinking.

"The generous interpretation is that voters subconsciously function like a Keynesian thermostat: ensuring that federal lawmakers are neither too hot nor too cold. George Will has made this argument for years. Americans, he says, actually prefer divided government, which is in keeping with a Madisonian system’s purposefully slow-moving constitutional machinery. I think I used to believe that. But then I look around: Are voters, who possess astonishingly little civic knowledge, really that canny? Or are elections driven by short-term, what-have-you-done-for-me-lately factors like disposable income and unemployment?"

The answer is "yes". Voters are that canny, and elections are driven by factors like disposable income and unemployment. As Scott notes, the hypothesis that voters subconsciously vote for divided government has been around for a while. However, the intellectual foundation for that hypothesis comes not from George Will, but political scientists like Morris Fiorina, David Mayhew, and economists like William Niskanen. The one contribution to the dialogue contributed by your humble blogger (in fact the raison d'etre for this blog) is that the independent, moderate, libertarianish swing vote in the middle should consciously embrace a divided government voting heuristic. Contrary to Scott's thesis - voters who choose to vote this way will be rocks of intellectual consistency and rationality by voting for Republicans in 2010, and if the GOP takes either house of Congress, voting for Barack Obama in 2012.

With all this talk of conscious and sub-conscious voters, batty candidates, insane policy, delusions, and crazy, spittle-flecked rants. I am beginning to think we could use some professional help around here. Fortunately....

"Both Democrats and Republicans have failed us in the last 10 years. They have failed on securing our borders and bringing order and rudimentary fairness to the immigration mess; they have failed to bring our fiscal house in order; they have failed to articulate and define the major struggles of our generation between freedom and tyranny. It is likely that in November we will be left with a divided government. Paralysis is certainly preferable to the further damaging of our country's institutions and erosion of our freedoms that are part of a one party government, but will also leave us poorly able to respond to emerging problems. I suppose that is the best we can hope for at this point."

Certainly divided government is the best we can hope for out of the 2010 election, but why so dour Doctor? In point of fact, David Mayhew has shown empirically and convincingly that in the modern era, there is no discernible difference in legislative productivity during times of divided versus one party rule. A far more significant factor in our governments ability to solve problems is something Mayhew calls "pervasive public mood" to solve the problem. We are getting there. And when we do get there - a divided government will ensure a better solution when all parties have a seat at the table.

Perhaps the good doctor can take comfort when candidates characterized as "extreme" look forward to solving one of our biggest problems in a bi-partisan manner under a divided government - for example:

"Buy-in from both parties will be needed to reform huge programs, and there’s no way one party can ram through the kind of change that the country needs to deal with a record-high $13 trillion national debt, he said. “It probably will happen under divided government, to be honest. When one party has complete control, it’s tempting to just ignore the other guys,” Toomey said. But, he continued, “when both parties have a seat at the table, then you sometimes get some real progress. I think that’s the environment we could be moving into. I think Republicans are going to make huge gains this fall. And after that happens, hopefully there’s an opportunity for real bipartisan progress with President Obama."

I don't understand why would anyone expect Democrats (or Republicans) controlling both the legislative and executive branch to ever cooperate or compromise on anything meaningful with other party if they don't have to. The simple reality is that with a super-majority in the Senate, control of the White House, and a large plurality in the House, only Democrats could obstruct the Democratic Party agenda.

"In fact, what York describes is exactly why divided government is as popular among independents as it is. That’s not a Constitutional function, of course, as the Constitution makes no mention of political parties. They designed the federal government with three coequal and competing branches that would guard their prerogatives jealously in order to prevent a tyranny with an over powerful executive, or mob rule through an over powerful Congress. That effort is predicated on both branches watching the other, but as York points out, neither party does it well (or at all) when they control both ends of Pennsylvania Avenue. The best way to make the balancing act successful has been to ensure that a President faces a Congress controlled by the opposing party.

This is similar to the point made by Norman Ornstein (historian and author of "Broken Branch") on Hardball in 2006, when we were living under the yoke of Republican One Party Rule. It is pretty simple really - if you want effective congressional oversight, at least one house of Congress must be held by a different party than the president.

"As Democratic strategists continue to push various campaign narratives to undercut Republicans ("Party of No," "Bush Republicans," "BP Republicans"), the congressional minority has a few ideas of its own.

GOP leaders are expanding their calls for repeal of the new health care law into a broader campaign theme that electing Republicans will provide the "check and balance" needed to parry Democrats and the Obama administration on an array of topics, with few specifics attached. [...] Republicans hope to make the case to independent voters in particular that casting a ballot for the GOP is the way to restore balance and rein in Washington.

Funny, these folks didn't seem to think "checks and balances" were necessary when there was a Republican Congress and Republican White House through most of the Bush/Cheney era."

That is not the really funny part, Steve. The funny part is that you either have a short memory or do not read the magazine that you write for. Some prominent conservatives and Republicans were so unhappy with the Bush administration that they were calling for Democratic victory in the midterms and restoration of divided government. I know this, because I posted highlights from the cover story of the Washington Monthly article entitled "Time for us to go." Apparently, memory is fleeting at the Washington Monthly. Steve's article also begs the question - What happened to the Democrats who thought divided government was a good idea in 2006? Well, at least one of them still thinks it is a good idea. That would be me.

Miscellany

Traditionally, we conclude this Carnival by including one "off-topic" submission, as a grudging acknowledgment and proxy for the many off-topic submissions received. Off-topic in this context meaning - no mentions of "divided government" or gridlock.

Open Limerick To Robert Gibbs and President ObamaBy Madeleine Begun Kane

Mr. Gibbs is thin-skinned, it appears.From the left, he wants only big cheers.But lefties just seekA Dem Prez who ain’t weak.White House courage is deep in arrears.

This verse is for Robert Gibbs’ boss.Ignoring the left is your loss.And a loss for the nation.Our former elationIs gone with your liberal gloss.

I found the ham-handed Gibbs/Axelrod/Rahm attempt at Clintonian triangulation to be a topic of great amusement and posted about it both here and at Donklephant. Madeleine 's limerick inspired me to pen a verse of my own:

Limerick for the Lackey Leftby The Dividist

Said Gibbs “The left is on drugs.”Rahm agrees: “Just pull out the rug!”“They’ve nowhere to go...They’re retarded you know...“In the end they’ll come back to ‘O’”

With that, we''ll wrap up this edition. Thanks for stopping by, and thanks for all of the submissions (on-topic or not).

The Democrats have been concerned about a lack of enthusiasm on the part of their base headed into the midterm elections. These sorts of rabid, caricatured, Fox-News-copying attacks on the Left will undoubtedly help generate more enthusiasm -- more loud clapping -- for the Democrats. I know I'm eager to go canvass and clap for Democrats after reading Gibbs' noble, inspiring vision. If it were Gibbs' goal to be as petulant and self-pitying as possible, what could he have done differently?...

My question is not why his liberal base is frustrated, that is pretty obvious. My question is what exactly was Gibbs trying to do? The initial rant was not "off the cuff". Lets get real. Gibbs is a Press Secretary. He serves up exactly nothing that is not first chewed, digested and excreted by Axelrod and Rahm. Then I read this in his artful walk back from the interview:

“In November, America will get to choose between going back to the failed policies that got us into this mess, or moving forward with the policies that are leading us out.”

Now I get it. They want to run against GWB again in 2010 because – you know – it worked last time. I mean - Bush was not running then... Bush is not running now... What's the difference?

But they really can’t run against Bush if the best and brightest in their base keep saying that Obama is acting just like Bush.

This was all about getting them to stop making that comparison. At least until after the election.

Monday, August 09, 2010

In the wake of Judge Vaughn Walker finding California's Prop 8 to be unconstitutional, we are treated to the predictable spectacle of hypocrisy on parade from politicos across the political spectrum including Newt Gingrich and Barack Obama.

I am sympathetic to the preference for individual rights being protected by a popular majority and/or legislature as opposed to judicial means. Who would not? That said, I don’t think there is any basis for saying it is a decision that should not have been made by a judge. Let me hasten to state that I am not making a legal argument, as I am not qualified to do so, let us call this a constitutional/philosophical observation.

Our Constitution implicitly and explicitly establishes something of a hierarchy of rights and powers. Federal powers are specifically enumerated, with the power not delegated to the United States government by the Constitution reserved to the States. This clearly indicates a general preference for state's rights and powers. The preference for the superiority of majority rule can also be gleaned in the order that the branches of government are enumerated in the articles of the Constitution. First the democratic people’s House, then the republican Senate, then the executive (selected by a non-majoritarian electoral college), then the unelected judiciary. All would argue for the founder's obvious preference for and superiority of democratic majority decisions, and the state's exercise of power to that of the federal government.

But – then there is the Bill of Rights, without which the Constitution would never have been ratified. The enumeration of rights in the first 10 amendments is informed by a self-evident truth that all individuals are imbued with inalienable rights to life, liberty and pursuit of happiness - rights that are inalienable by kings, rights that are inalienable by majority rule. These rights are at the pinnacle of and/or transcend the entire hierarchy of preference of power found in the Constitution. The fundamental assertion of the Bill of Rights is that no power may abridge these rights – including a democratic majority at either the state or federal level. All branches of the federal government should regard protection of these rights against encroachment - regardless of source - as a primary responsibility.

Who better to speak to the limits of majority rule, than the architect of the Constitution - James Madison? In Federalist #10 he speaks directly to protecting rights from the majority:

“When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

And again, in his speech at the Constitutional Convention introducing the Bill of Rights for consideration, Madison is clear about the limits of majority rule:

“But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.“

So what should happen when the majority acts against a minority, as in Proposition 8? Particularly when we see the executive branch make a craven political decision to not act in support of the minority, and legislators at both the federal and state level unwilling to act in contradiction to the majority view? In such a case, it seems obvious that the judiciary is the last firewall to protect our liberty, and it is only the judiciary that can preserve our rights against the will of the majority. In such a case, not only is judicial action acceptable, it is necessary, even when it means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

Now if only our Congress would do their job, reassert their constitutional authority as a co-equal branch of government and begin to reel back in the ever expanding role of the Unitary Executive and our Imperial Presidency, then we might return to the founder's intent of an executive branch that "is not the stronger branch of the system, but the weaker" as also asserted by James Madison.

"This report describes dozens of new governmental organizations or advisory bodies that are mentioned in PPACA, but does not include other types of entities that were created by the legislation (e.g., various demonstration projects, grants, trust funds, programs, systems, formulas, guidelines, risk pools, websites, ratings areas, model agreements, or protocols). A table in the Appendix is organized in terms of entities (1) that were created by PPACA itself (e.g., through statutory language stating that an organization is “established” or “created”); (2) that PPACA requires the President to establish (e.g., “the President shall establish”); (3) that PPACA requires the Secretary of the Department of Health and Human Services (HHS) to establish (e.g., “the Secretary shall establish”); (4) that PPACA requires some other organization to establish; and (5) that PPACA authorizes to be established....

The precise number of new entities that will ultimately be created pursuant to PPACA is currently unknowable.. The legislation sometimes indicates when and where certain entities are to be established, how members are to be appointed, the amount and timing of appropriations, whether certain general management laws are applicable, and when the entities will cease to exist. In other cases, however, PPACA is silent with regard to these and other issues. The degree of specificity in these provisions may have implications for congressional control and, conversely, the amount of discretion that agencies will have in the implementation of the legislation. PPACA significantly increased the appointment responsibilities of the Comptroller General of the United States, and it is unclear how the Government Accountability Office (GAO) will be able to independently audit entities whose members are appointed by the head of GAO."

The report was released in early July, but the MSM and blogosphere are just now beginning to pick up on the ramifications of what it says about our new Health Care law of the land.

"Don’t bother trying to count up the number of agencies, boards and commissions created under the new health care law. Estimating the number is “impossible,” a recent Congressional Research Service report says, and a true count “unknowable.” The reasons for the uncertainty are many, according to CRS’s Curtis W. Copeland, the author of the report “New Entities Created Pursuant to the Patient Protection and Affordable Care Act.” The provisions of the law that create the new entities vary dramatically in specificity. The law says a lot about some of them and a little about many, and merely mentions a few. Some have been authorized without any instructions on who is to appoint whom, when that might happen and who will pay."

"A sprawling bureaucratic giant - nobody knows how big it will be. That seems to be the result of President Obama's new health care law. According to Politico, a recent report says it's "impossible" to estimate the number of agencies, boards and commissions created by the new law. The Congressional Research Service report points to many reasons for this. First off, the parts of the law that create new bodies vary drastically. In some cases – the law gives lots of details... in other cases, barely a mention. Also, the law authorizes some new entities... without saying who will do the appointing, or when it will happen. And all this means some agencies could wait indefinitely for staff and funding... while others could multiply... creating quote "an indeterminate number of new organizations." So far this is shaping up to be exactly what the critics were afraid it would be... How will the government manage our health care if it's "impossible" to know the number of agencies, boards and commissions created by the new health care law?"

"CRS wanted to say that there wasn’t enough certainty in the number of agencies, panels, and committees to put them into flowcharts with connecting lines. Like Nancy Pelosi once argued, the CRS report says that we can’t know what’s in ObamaCare until the government rolls it out . That in itself is a big, big problem. It seems clear that Congress just authorized a self-perpetuating bureaucracy, one that can expand on its own and make determinations far outside of the boundaries Democrats promised during the ObamaCare debate. And if that’s true, then it is equally true that the claims made on the cost of administering ObamaCare had no real basis in fact. How can one estimate a cost for a bureaucracy that is entirely undefined in size and scope?"

"Just in case anybody missed Copeland's point, Barbash noted that "implicit in the report is a message not to take too seriously the elaborate charts and seemingly precise numbers peddled by Republican critics that are designed to show the law's many bureaucratic tentacles." But folks who actually read the Copeland report and scan those two scary GOP charts are quite likely to reach the contrary conclusion. In fact, one might even think the GOP critics were being too easy on Obamacare... Copeland looked at only part of the picture. The rest of the picture -- those demonstration projects, grants, trust funds, programs, systems, formulas, guidelines, risk pools, etc. -- will result in at least as much, if not much more, bureaucratic expansion. So, while the precise number of new government bureaus and bureaucrats created by Obamacare can't be known now, what is known beyond any shadow of a doubt is that there will be more, much more, government."

Make no mistake - the GOP will make sure everyone gets a good long rub-your-nose-in-it look between now and November. Every GOP candidate will be taking shots at Obamacare, and that is one slow fat rabbit to hunt. When you look at the chart and read the CRS report - the campaign ads write themselves. Since no Democratic Party candidate has any real idea of what is in the hairball they voted for – well – lets see what happens when GOP ads start putting it on the air 7×24 and they have to keep explaining the details to the voters.

The administration is not taking this lying down - in another triumph for "framing" over content, they've recruited Andy Griffith to lead the charge with a misleading, taxpayer funded, possibly illegal, pre-emptive advertising strike. After all, if you can't trust the Sheriff of Maybury - who can you trust?

DIVIDIST FEATURED VIDEO:Antonin Scalia Ruling - Gridlock Is A Feature Not A Bug.

Justice Antonin Scalia explains the virtues of our divided government with the insight, clarity and simplicity of language that made him a giant on the Court. If you understand the Framer's intent with checks, balances, and separation of powers, you'll understand that divided government and gridlock is what really protects our freedoms, and makes our system exceptional [H/T Karl].

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